News & Current Affairs
21 August 2014
Chief Justice Carmody and the “merit principle”
What are we looking for in judges, and particularly in a chief justice? The controversy over the Queensland government’s appointment of Tim Carmody QC helps clarify the issues
What qualities make for a good judge? Are certain knowledge and skills enough to justify an individual’s appointment to the bench, or is something more required? What might that be – seniority, reputation, personal characteristics that diversify the judiciary? And who needs to be satisfied that the candidate is the right one – the government, whose decision it is, or the judiciary, who must accept the individual into its ranks?
These perennial questions have acquired a particular piquancy in the aftermath of the intense controversy surrounding Tim Carmody QC’s appointment as chief justice of Queensland. Carmody was sworn in at a private ceremony on 8 July but only received his public welcome on the first day of this month. It was then that the new president of the state Bar Association, Shane Doyle QC, said the “controversy is now, or should now be, in the past.” It is doubtful that a line can be drawn under the affair as crisply as that, but it is true that only now, with Carmody seemingly ensconced, can we take stock of months of turmoil in Brisbane.
The hostility that greeted the Newman government’s appointment of Carmody in June was unprecedented in Australian legal history. Other judicial appointments have certainly attracted criticism – in the case of the High Court, the elevation of Albert Piddington in 1913 (who resigned before ever hearing a case) and Lionel Murphy in 1975 are the best known. But two features distinguish the Carmody affair: the questionable integrity of the consultation process conducted prior to his selection, and the perception that he is “too close” to government. Both help explain why the appointment met with such strong objections.
Even so, there was a more fundamental complaint: that Carmody is not up to the job. By focusing on this issue, which is central to justifying any individual’s selection for the bench, it may be possible to divine from the affair some answers to the questions that opened this article. Governments invariably insist that judges are appointed “on merit alone.” But what does this actually mean, is it practical, and who decides whether the candidate has merit, or has not?
Let’s deal first with the distinguishing features of the controversy. From its early stages, the process of appointing a new chief justice gave rise to deep consternation. In March, Queensland attorney-general Jarrod Bleijie revealed the content of private consultations he’d had with Justice Margaret McMurdo, president of the Queensland Court of Appeal, about the looming appointment. That breach of confidence – in retaliation for comments by her honour about the underrepresentation of women in the state judiciary – led to a remarkable public slap-down by Walter Sofronoff QC, who had resigned as the state’s solicitor-general just a week earlier. Carmody, the state’s chief magistrate since 2013, came forward unprompted to voice his support for the attorney-general and belief in his integrity. That intervention was just one factor later cited by opponents to his elevation to the state’s top judicial post.
On 13 June, the day after the government announced Carmody’s elevation to chief justice, the president of the Queensland Bar Association resigned in protest over the attorney-general’s apparent leaking of comments he had made during confidential discussions about possible candidates for the vacancy. This was an extraordinary challenge to the integrity of the selection process, and one that raised the disquiet over Carmody’s appointment to a din. The attorney-general’s conduct dismayed the profession and drew the ire of senior state legal figures, most notably former judge and anti-corruption commissioner Tony Fitzgerald QC, as well as condemnation from the Australian Bar Association and the Law Council of Australia.
The second distinguishing feature of the Carmody affair is the view that the candidate had, on several occasions, demonstrated a worrying closeness to the government. Carmody’s appointment was likely, it was argued, to undermine public confidence in the independence of the judicial system. His decision to express support for the attorney-general over the McMurdo leaks was one thing, but of central concern was the cumulative effect of Carmody’s utterances and actions as chief magistrate in relation to the government’s contentious anti-bikie legislation, the Vicious Lawless Association Disestablishment Act 2013. Of these, the most cringe-worthy was a silly reference, when he denied bail to men charged under the Act, to either the premier or the attorney-general as “a new sheriff in town with low or zero tolerance for criminals and their activities.”
But it went much further than that. Carmody had emailed the state’s magistrates advising them against giving bail to people charged under the Act. He directed that all such bail applications would be heard in the Brisbane court, with the consequence that he or a magistrate of his choice would preside. The Queensland Bar Association urged him to reconsider, reminding him that “principles of fairness and equality before the law are best served by the Court as a whole dealing with these applications, not a designated judicial officer.” Swearing in two new magistrates in January, Carmody made comments which, while fairly unremarkable in the abstract, were seen by many as an attempt to shut down judicial expressions of concern about “the comparative morality or fairness” of the government’s new laws. But nothing could top the astounding own-goal he kicked after his elevation was announced. “How far away are you supposed to be from government?” he said to critics of his appointment. “The point is in these jobs you’ve got to be close to government, and have a good working relationship with them.”
Fitzgerald and Sofronoff, emphasising the threat to judicial independence, led the charge against Carmody. With other senior figures – including, most remarkably, serving judges who are now working alongside Carmody on the Supreme Court – they called on him to decline the appointment, as did the Queensland Bar Association. But Fitzgerald’s stature, as the man who exposed pervasive corruption at the highest levels of the state in the 1980s, means his contribution has been especially notable. He has continued to voice his concerns about the affair and its implications for the integrity of governance in Queensland well after Carmody’s swearing-in and even after premier Campbell Newman sought “reconciliation” with the judiciary following a telling by-election loss in July. Now, a counterattack appears to be well and truly on, with Fitzgerald subject to various personal broadsides in the media.
As for Carmody, while his resilience in the face of such sustained criticism is undeniably impressive, it is clear that the controversy is hardly behind him, if indeed it ever will be. Further adverse comment came after his swearing-in as chief justice took place in private, the first time this has occurred since 1917. Not a single member of the Supreme Court attended the public welcoming ceremony on 1 August – except for the newly appointed judge, Peter Flanagan, whose misfortune was to share in the ceremony. In all the words written criticising the Carmody appointment, it is doubtful whether any speak as powerfully as the image of the new chief justice surrounded by the empty chairs where his colleagues should have been sitting.
These issues of process and independence are, of course, central to the Carmody affair. But a third and equally powerful argument probably resonated more clearly with the general public. This was the charge that Carmody does not have what it takes to do the job. To give just a smattering of examples, Carmody was described by Justice John Muir as “profoundly ill equipped” to handle the litigation that occurs in the Supreme Court, while retired justice Richard Chesterman opined that he was likely to be an “ineffective” leader of the judiciary. Fitzgerald included him among those people “whose ambition exceeds their ability.” Retired judge George Fryberg said he didn’t think that Carmody’s “qualities are suited to this job.” Sofronoff said Carmody was “a person who has none of the necessary qualities of a chief justice of a Supreme Court of a state of Australia” and implored him to “realise that all of this has been a horrible mistake and say that he wouldn’t accept the appointment.” Never has a judicial appointee’s professional reputation been so mercilessly trashed by such senior figures.
This brings us to the thorny issue of what is meant by a word that is ubiquitous in the context of judicial appointments, “merit.” In his speech at Carmody’s welcome ceremony, Bleijie – almost certainly to the infuriation of his critics – seized on this concept as a “guiding principle” behind the appointment. He proceeded to quote an influential statement of the so-called “merit principle” by Lord Hailsham, twice the Lord Chancellor of the United Kingdom in the last century:
My first and fundamental policy is to appoint solely on merit the best potential candidate ready and willing to accept the post. No consideration of party politics, sex, religion, or race must enter into my calculations and they do not. Personality, integrity, professional ability, experience, standing and capacity are the only criteria, coupled of course with the requirement that the candidate must be physically capable of carrying out the duties of the post, and not disqualified by any personal unsuitability. My overriding consideration is always the public interest in maintaining the quality of the Bench and confidence in its competence and independence.
To invoke this passage was, unquestionably, an audacious move on the attorney-general’s part. That the very same concerns were the basis of the criticisms made by opponents of the appointment is evident from Hailsham’s identification of the components of the overarching concept of merit: “personality, integrity, professional ability, experience, standing and capacity.”
That list helps a little to demystify merit, but it could, and has, been improved on. Consider the express criteria used by the federal government under prime ministers Rudd and Gillard to guide the shortlisting of individuals for appointment to the federal judiciary:
- • legal expertise;
- • conceptual, analytical and organisational skills;
- • decision-making skills;
- • the ability (or the capacity quickly to develop the ability) to deliver clear and concise judgments;
- • the capacity to work effectively under pressure;
- • a commitment to professional development;
- • interpersonal and communication skills;
- • integrity, impartiality, tact and courtesy; and
- • capacity to inspire respect and confidence.
Along with other reforms to federal appointments initiated by former attorney-general Robert McClelland, that statement of criteria has been abandoned by the Coalition government. But equivalent lists of judicial qualities are used in some states, though not, obviously, Queensland. Arguably these are just better-articulated and more transparent versions of Hailsham’s list. They certainly reflect the qualities routinely identified by academic studies and professional bodies, both here and overseas, as relevant to judicial work. The degree of consensus is unsurprising: these are all things we would expect, or at least hope to see, in persons occupying judicial office.
But is any such list really capable of being determinative? It is clear that, regardless of the strong rhetoric about “merit alone” being the “sole criterion” for any appointment, other factors are likely to bear on the selection. For one thing, any set of criteria is unlikely to produce a clear ranking of candidates, except in the most obvious of cases. Before his own appointment to the High Court, Justice Stephen Gageler said a belief that appointments are made on merit alone is naive because “at any time there would be fifty people in Australia quite capable of performing the role of a High Court justice.” By analogy, we might assume that for other senior positions, even within the smaller professional pool of a state, there are always a number of viable contenders. It will not be as high as fifty but we would certainly anticipate there would be more than one.
In which case, how is the decision to be made between such persons? In a comment which supports Gageler’s view that merit alone cannot determine selection, the University of London’s Kate Malleson has observed that “candidates do not come with comparable and quantifiable skills, experiences and knowledge which can easily be ranked.” She has argued that merit can only, at least in the judicial systems of common law countries, operate as a threshold consideration, beyond which is “a contextualised and dynamic process which involves a significant qualitative and subjective element.” Even alongside an insistence on merit, in other words, the scope for discretion almost inevitably exists.
The Queensland attorney-general acknowledged as much when, in his welcome speech, he suggested that a desire to achieve the “generational change so necessary for healthy, responsive, progressive stewardship of our courts” had strengthened his decision to appoint Carmody. He explained further:
Generational change is… about ensuring that Queensland’s justice system remains in step with our rapidly changing world. It’s about ensuring we do not become shackled by tired, outdated convention and unduly constrained orthodoxy… Sometimes that requires an external perspective supported by a fresh set of eyes. Chief Justice Carmody is well equipped to consider and deliver the next wave of reforms and innovation.
This was a direct response to objections that Carmody had leap-frogged over more senior judges in the District and Supreme Courts to take the state’s highest judicial office. Bleijie cited the comment of his Labor predecessor, Matt Foley, that while seniority “is an important matter to be taken into account… it is important that these appointments be made on merit.” This has a superficial attractiveness – seniority for its own sake should rightly play little part in selecting one individual for appointment over others. But professional seniority often tends to be the consequence of an individual’s possession of the several qualities identified as making up merit: legal expertise, a range of relevant skills developed and demonstrated over time, and the capacity to inspire respect and to lead.
In any case, it is clear from Bleijie’s explanation that it was not his perception of Carmody’s merit in isolation that trumped the seniority of others, but also the view that he was well placed to modernise the court’s outlook. Deciding to reorient, refresh or diversify courts through the selection of individuals to serve on, or even head, them is hardly unheard of; and in Australia it remains the prerogative of the government of the day. While for some that may give rise to qualms, it is important to recognise it as one of the few ways in which the judicial arm of government is rendered democratically accountable.
It is frequently argued, for example, that government should use this power to appoint more women and people from different ethnic and social backgrounds. This would obviously ensure a judiciary more representative of the community it serves; but it would also, it is argued, enhance the work of courts by bringing a diversity of perspectives to the adjudicative process. A consideration on these very lines was a small aspect of the justification given for Carmody’s appointment. Bleijie stated that Carmody added “significantly to the depth and diversity” of the Supreme Court, presumably drawing on the premier’s earlier description of him as a “self-made man and knockabout bloke.” Tony Fitzgerald dismissed Carmody’s working-class roots as a matter of “overwhelming irrelevance,” but that is not so. No judge’s background is ever irrelevant, and the image of the judiciary as a privileged and elitist class, out of touch with society’s concerns, is a legitimate concern. Carmody himself has rejected that portrayal, saying that he was “not that unusual” and “there’s a lot of judges there [on the Supreme Court] that came from, if not the same, similar backgrounds.”
As the Hailsham quote favoured by Jarrod Bleijie shows, factors like these have traditionally been opposed as a dilution of the importance of “merit.” But as we come to accept that highly suitable candidates are not easily ranked, and that merit alone will therefore rarely determine the outcome, then the use of broader considerations – certainly apolitical ones such as equity and diversity – should not seem so very controversial. Gageler, for instance, supported using gender, ethnicity and a range of other considerations to choose from among a pool of potential candidates already identified as possessing the “essential judicial attributes.”
“Merit” must remain a threshold factor, of course. Governments lose sight of that requirement at their peril. A selection that smacks of blatant partisanship divorced from clear signifiers of appropriate qualifications and experience risks damaging community confidence in the relevant court. It is also very likely to thwart any influence it is hoped the appointee will have in bringing about change.
So Bleijie’s stated purpose does not itself provide a ground for attacking his selection of Carmody. But nor can it compensate for any insufficiency of merit. In an extraordinary opinion piece published before the appointment was announced, Sofronoff called on Carmody to refuse the job if offered it. He compared the key features of Carmody’s career unfavourably with those of retiring chief justice Paul de Jersey, detailing the swiftness with which the latter became a QC, the extensive nature of his private legal practice and his many years of judicial service before his elevation. He summed up Carmody as:
A barrister who spent about sixteen years as a junior. He was a Crime Commissioner for a very few years and a Family Court Judge for a very few years. He practised as a silk for only a few years. He has never held a position of leadership at the Bar. And he has been a magistrate, albeit the chief magistrate, for less than one year.
More specifically, there were reports of judgements Carmody had written during his time on the Family Court which were later found to contain passages from earlier opinions in a different case. Legal commentator Richard Ackland described this as “scissors and paste work” but Sofronoff was even more damning, saying the opinion was “patched together, something like a university student would do an essay, hoping it would pass muster.” Despite these accounts, the former chief justice of the Family Court, Alistair Nicholson, defended Carmody as “a deep-thinking bloke… [who] sat down and did his work well. He had some sensible and well-thought-out ideas and he was pretty reliable… I felt he was a man of some depth.”
Regardless of what anyone said against him or for him, ultimately it was Carmody himself who confirmed that he did not meet the necessary merit threshold. This was, as the Australian’s Michael Pelly wrote, a signature difference from earlier instances where it had been suggested that an appointee was not quite deserving of appointment. In a highly unusual strategy, Carmody defended his elevation on Brisbane radio the day after it had been announced by saying:
I’ve often said, and I’m sure nobody would argue, that I may not be the smartest lawyer in the room, and if you were in a room with me and I was the smartest lawyer it would be a good time to leave it. But there’s more to being a chief justice than a black letter lawyer. There are plenty of them already on the Supreme Court and I don’t aspire to compete with them for intellectual rigour.
Self-deprecation can be an appealing characteristic, but not on this occasion. Hold that statement up against the meanings given to “merit” by Hailsham, the McClelland criteria or indeed any other you might find, and inevitably the chief justice is found wanting. Although they are often described as “first among equals,” chief justices need not be the intellectual leaders on the bench – though the court’s reputation often appears to be stronger when this is the case. But if the Newman government is serious in its desire for “generational change” on the judiciary, then surely it would want to appoint someone who at least aspires to match his or her colleagues intellectually? Expertise, professional ability, conceptual and analytical skills, standing, the capacity to inspire respect and confidence – articulate the concepts any way you like, Carmody’s frank remarks jarred uncomfortably with the qualities needed in judicial office, let alone in a chief justice.
Justice John Muir, soon to retire from the Supreme Court, observed of Carmody’s candour:
Would the selectors of the Australian cricket team contemplate, even momentarily, an Australian cricket team captain who was inferior in skills to the other team members? Might not an accused in a criminal trial, a party to a civil litigation or a party to an appeal before his Honour expect and appreciate the application of intellectual rigour? Should not a chief justice’s colleagues be able to seek his or her informed opinions on a range of complex issues?
If that seems an unarguable proposition, consider the contribution made by University of Queensland law professor James Allan. In an opinion piece in the Australian, Allan made the case for an intellectually docile judiciary:
If, like me, you want your judges committed to interpreting the legal texts in the way they were intended by the democratically elected legislature, and in line with their plain meaning, then uber-smart judges are simply those with the resources to avoid such constraints… Put differently, the unspoken premise among the “top judges need to be the biggest brains in the room” crowd is that we want our judges to be out there pursuing social justice (or their version of it, to be a little more exact) and indulging in social engineering from the bench and that you can’t do that in any plausible way unless you are really, really smart…
I think there are plenty of people out there who would make perfectly acceptable chief justices. Sure, a really smart person might make a great chief justice. But that same he or she is also more likely, in my opinion, to make an awful one.
Taking to the radio airwaves, Allan reasserted the argument that legal brilliance produces judges who “feel they have their fingers on the pulse of changing social values and all this basically anti-democratic stuff… I want a guy who has a good law degree, who’s smart, but I don’t want someone who’s got the tools to undermine the written legal text.”
At least two responses can be made to these remarkable statements. First, it is well within Allan’s job description as a legal academic to mount the case for a particular judicial style or ideology as preferable or democratically legitimate. But his concerns seem a tad abstract and secondary to the need of litigants appearing before particular judges, and for the community at large, to have full confidence in the expertise of those hearing actual cases. This is even before we take on board Justice Muir’s hope that the titular leader of the Court might be a colleague whose opinion other judges would seek out and value. Second, the equation Allan makes between “uber-smart” judges and what we might call, for want of a better expression, judicial activism is spurious. Implicit in our acceptance of that view is agreement with the converse proposition – that close adherence to legal text and high fidelity to earlier precedent are the hallmarks of those who might also identify as “not the smartest lawyer in the room.” Is he really offering such a remarkably back-handed compliment to those members of the Australian judiciary with a reputation for a conservative legal method?
Contrary to Allan, if “merit” means anything, it means possessing a superior legal mind. This is not to say that each judge in the country is as smart as every other – judges are people, not robots and their respective qualities will differ. But, with merit as at least a threshold for selection, and understood in relation to the needs of particular courts, it seems not unreasonable to hope that our appointment process should be geared towards ensuring that the smartest lawyer in the room is the one who is deciding the case – the judge.
It is clear that judicial appointment is an art, not a science. Merit is essential, but rarely will it be the exclusive consideration. Other factors will inevitably enter into the process of making a selection. In our system, these are issues for the government to weigh. But does this mean the judiciary and the broader profession have to put up and shut up when an appointment is made that rankles?
The Australian’s Legal Affairs editor, Chris Merritt, certainly thinks so. He neatly turned the concerns of Carmody’s critics about judicial independence back on to them by presenting the controversy as “a naked grab for power” by the judiciary. “What these people are doing,” he wrote, “is nothing less than attempting to change the settled constitutional division of power between the executive and judicial branches of government.”
While Merritt’s claim that the protests amounted to an attempt by the state’s most senior judges and barristers to acquire “a veto over judicial appointments” was clearly an exaggeration, his attention to the separation of powers issues undeniably exposed the tensions inherent in the critics’ position. While the profession may be consulted as a matter of practice, under current constitutional arrangements the appointment is the government’s to make.
Merritt warned against the judiciary becoming a “self-selecting elite.” At present, that is a remote danger in any Australian jurisdiction. But it is indeed a real concern in jurisdictions where reform of judicial appointments has started from the attractive premise that political influence is to be reduced. To take just a prominent example, legislative changes in the United Kingdom in 2005 have so constrained the role of the government in making appointments that the lord chancellor is presented with just a single name by the independent Judicial Appointments Commission. He or she may, giving reasons, reject the nomination or request a reconsideration, but this simply returns the question to the commission. After three separate recommendations have been made, the lord chancellor must select one of the offered names for appointment.
Grave concerns have emerged about this system. In particular, giving serving judges too much influence over appointments through their presence on the commission, and on special panels for vacancies on the Supreme Court of the United Kingdom, risks a self-perpetuation of the judicial class in its own image.
The Carmody affair has understandably awakened interest in reforming judicial appointments, and it is undeniable that this remains an area in which all Australian jurisdictions have more work to do. Despite how starkly Merritt presented the recent conflict in Queensland, there is little evidence that the judiciary and legal profession are angling to have the final say in who is appointed to the bench. But if a push for reform does become the ultimate legacy of this sorry episode, then it is as well to be on guard against models which go to the other extreme of placing too much say in the hands of those who are not directly accountable to the people.
None of this is to argue that the legal profession should be entirely acquiescent under arrangements as they stand. While correct in a pure sense, Merritt’s belief that democratic accountability will act as a check on reckless judicial appointments by the government ignores the fact that the electorate will be paying little attention to the issue and in no position to evaluate the selection without hearing from the profession. The profession’s reaction is the canary in the mine. It is so customary for professional legal associations to congratulate and praise new appointments that to legal insiders this may appear almost a matter of formality, but it should instead be appreciated for what it is – an assurance to the broader community that the appointment is sound. On the rare occasion when criticism greets an appointment, this need not mean it is lacking in merit, but at least the public is alerted to the need to consider carefully the executive’s justification of its selection.
This might signal the natural limits of the profession’s role. But in the midst of a live controversy, it may prove hard to draw the line between providing the community with a clear explanation of concerns about an appointment and running “a public campaign to overturn” it. As Merritt observes, the more strident the criticism the less likely the government can afford to retreat. It has even been suggested that the whole affair in Queensland is the result of government not wishing to be seen to lose face: according to one account, Premier Newman only swung his support behind Carmody, otherwise not the front-runner, after Sofronoff launched his pre-emptive attempt to head off the appointment. If true, that should give both sides of the controversy pause for thought.
Only time will tell how Tim Carmody fares as chief justice of Queensland. His impact on the bench may even exceed his own modest predictions. But there is no doubt that the whole affair has been a bruising one for all concerned. No individual has emerged unscathed from the conflagration and the institutional standing of the judiciary has – on any view of the matter – been diminished.
The affair demonstrates that despite the limits of the so-called “merit principle” and the legitimacy of supplementing that with broader considerations to guide the government’s discretion, there is a need to develop an appointments process that unreservedly establishes that an individual possesses the essential judicial qualities to the satisfaction of both the government and the legal community.